Tuesday, October 12, 2010Last Update: 10:09 AM PT

Judge Won't Dismiss Immigration Lawsuit

By JAMIE ROSS

PHOENIX (CN) - A federal judge rejected motions in which Gov. Jan Brewer, Maricopa County Sheriff Joe Arpaio and Pinal County Sheriff Paul Babeu sought dismissal of a lawsuit challenging the constitutionality of Arizona's new immigration law. The complaint filed by civil rights groups, including Friendly House and the American Civil Liberties Union, contains sufficient allegations that S.B. 1070 perceptibly impairs the ability of the organizational plaintiffs to provide the services that the organizations were formed to provide, and as a result, there can be no question that the organizations have suffered an injury in fact, U.S. District Judge Susan Bolton ruled. "While Governor Brewer correctly points out that, for the most part, the organizational plaintiffs' allegations involve threats of future harm, the threat of future harm is sufficiently imminent." Bolton found the civil rights groups have standing to bring the lawsuit because the "alleged harm to the organizational plaintiffs will occur if S.B. 1070 goes into effect, regardless of how it is enforced or applied." Bolton wrote that "race, alienage, or national origin discrimination was a motivating factor in the enactment of S.B. 1070." The immigration law would require officers to check people's immigration status, and allows officers to make a warrantless arrest if there is probable cause to believe the person committed an offense or is removable from the United States. It would make it illegal for an undocumented alien to apply for or carry registration papers, and it prohibits unauthorized aliens from working. Bolton found merit in the plaintiffs' arguments for potential Fourth Amendment and 14th Amendment violations because the immigration law "contains no meaningful procedural safeguards against erroneous deprivations of liberty, and immigration status is not something that is easily ascertainable. A person who is lawfully present in the U.S. may look and act the same way as a person who does not have permission to be in the country, and plaintiffs' allegations of 'subjective and arbitrary' detention decisions by law enforcement agents are plausible." Judge Bolton wrote that as there is no list of crimes that make a person removable from the United States, immigration findings should be made by federal officials, not state police officers. Bolton granted some of Brewer's motions, however, including one against the plaintiffs' First Amendment claim that individuals will be "afraid to speak a foreign language or accented English around law enforcement officers." The judge found that the law "does not purport to limit the rights of individuals to speak." Bolton found that the plaintiffs' "hypothetical" right-to-travel claim is invalid because a person would have to be lawfully stopped by a law enforcement officer, and the officer would then have to develop reasonable suspicion that the person was unlawfully present in the U.S. before the stop would result in a detention. Bolton called the plaintiffs' request for an injunction moot because she already issued a stay in the Department of Justice's lawsuit, and plaintiffs did not "substantively challenge any provisions of S.B. 1070 that were not enjoined by the court in the USA order, although plaintiffs do challenge the relevant provisions on some different grounds."